Ethical Parking CBC and Brighton & Hove Council

Iguana_En_Fuego

Looking at the Contract, commencement date is 1st December 2014, contract period 12 months, ending 30th November 2015. So therefore the Contract is invalid. Additionally, Ingram Estate is not included in this contract in the Appendix.
The 'Council Letter' appears to be a simple letter requesting EPM to add the Estate to their patrolled sites, and includes no attachments showing the extent of the enforced areas. Is this therefore meaningless?

Coupon-mad

Yes to all of that being included in your rebuttal for POPLA - and they've proved it is not 'relevant land'. Nice of them to show you were right! Point out the land is under statutory control as proved by the BHCC letter, so a keeper can't be deemed liable and the PCN was not properly issued.

Umkomaas

The contract requires the PPC to issue charges for 'illegal parking'. The PPC has no role in upholding the law - so is exceeding its authority and therefore not complying with the BPA CoP.

It also confirms the PPC is issuing 'penalty' charges - something a private contractor is unable to do. The charge is therefore confirmed as a PENALTY, which is unenforceable and is a further ground for POPLA to uphold your appeal.

Iguana_En_Fuego

Thanks C-M and Umkomaas
So even if the Contract was valid, it becomes Invalid as it is a requirement of Contract that the PPC operates in accordance with the BPA CoP.
I had picked up the multiple 'Illegal's and 'Penalty(ies)', so will use your rebuttals.
I have also picked up that the observation time required is shown as 15/30 minutes (whatever that actually means), the PCN was issued within 25minutes so another failure, even if the Contract was valid.
C-M would you mind expanding on the Not-relevant land details in the Council letter, I have read this several times but to an 'average joe' they appear to realise different aspects of highways and private, or are we going down the 'road' of publicly accessible roads etc, as defined in various Acts?

Fruitcake

Iguana_En_Fuego wrote: »

Thanks C-M and Umkomaas
So even if the Contract was valid, it becomes Invalid as it is a requirement of Contract that the PPC operates in accordance with the BPA CoP.
I had picked up the multiple 'Illegal's and 'Penalty(ies)', so will use your rebuttals.
I have also picked up that the observation time required is shown as 15/30 minutes (whatever that actually means), the PCN was issued within 25minutes so another failure, even if the Contract was valid.
C-M would you mind expanding on the Not-relevant land details in the Council letter, I have read this several times but to an 'average joe' they appear to realise different aspects of highways and private, or are we going down the 'road' of publicly accessible roads etc, as defined in various Acts?

Post 7 of this thread might help about understanding the not relevant land aspect.

https://forums.moneysavingexpert.com/discussion/5527635

Coupon-mad

are we going down the 'road' of publicly accessible roads etc, as defined in various Acts?

No need, just look at the definition of 'relevant land' and you know already that BHCC are a 'Traffic Authority':

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

“relevant land” has the meaning given by paragraph 3;

3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—

(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(b) a parking place which is provided or controlled by a traffic authority;

(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Umkomaas

You've basically got them up a creek without a paddle. All you need to do is persuade POPLA to agree!

Iguana_En_Fuego

Draft rebuttal below for critique please.

I am away on holiday soon, and need to get this back to POPLA soon, on behalf of the RK.

Dear POPLA Adjudicator
Rebuttal of Operator Evidence
As keeper of vehicle with registration ======, I would like to exercise my right to rebut the evidence provided by Ethical Parking Management as detailed in their e-mail and attachments sent to POPLA and copied to myself, dated == March 2017.
The operator ‘evidence’ consists:
A. Some 20 digital images
B. Copy of the original PCN
C. Copy of the NTK
D. Appeal Received
E. Appeal Reply
F. BHCC Contract
G. Council Letter
The operator has provided no additional written form of evidence, therefore I shall respond using the above bullet points as terms reference.
I submit the reasons below continue to show that I am not liable for the parking charge and would be grateful if you would respectfully consider the following rebuttals a) to e) in conjunction with my original appeal: -
A. Digital Images
The digital images were provided to the Registered Keeper with the operators Appeal Reply letter. The images introduce no additional evidence to the appeal.
My original appeal already considers these images and I have no further comment to make.
B. PCN
A copy of the PCN (actually a Contractural Breach Charge) was provided to the Registered Keeper with the operators Appeal Reply letter. The CBC introduces no additional evidence to the appeal.
My original appeal already considers the CBC and I have no further comment to make.
C. NTK
This is a copy of the NTK received by the Registered Keeper.
The NTK introduces no additional evidence to the appeal.
My original appeal already considers the NTK and I have no further comment to make.
D. Appeal Received
This is a copy of the initial Appeal sent to the operator by the Registered Keeper.
The Appeal introduces no additional evidence to the current POPLA appeal, however it should be noted that operator has included a second page in the PDF document, which is Page 1 (of 2) of the NTK.
As the Registered Keeper, I can confirm that a copy of the NTK (in whole or in part) was not included with my appeal. The PDF document is therefore factually incorrect and is not a true representation of my original appeal.
E. Appeal Reply
This is a copy of the operators Appeal Reply received by the Registered Keeper.
The Appeal Reply introduces no additional evidence to the appeal.
My original appeal already considers the NTK and I have no further comment to make.
F. BHCC Contract
The operator has provided a copy of the Contract between Brighton & Hove City Council and the Operator.
There are many faults with the Contract, any one of which would be fatal to the operators claim:
i. The Contract has a commencement date of 1st December 2014 with a fixed 12 Month Term, ending 30th November 2015.
The operator has not demonstrated that a current contract for parking management is in place at the time of parking (28/12/2016).
The operator has confirmed, by its own evidence, that it does not have a Contract at all.
ii. Even if the Contract was valid, Ingram Estate (including Ingram Crescent East and Ingram Crescent West) does not form part of the operators car park management, as evidenced by the (lack of) these addresses being listed in Appendix A – Site List.
iii. Further, it is a condition of the Contract that the Operator complies with the BPA CoP. Non compliances with the BPA CoP have previously been raised in my original appeal, however the contract includes the following wording and clauses which are further non compliances with the BPA CoP:
a. Illegal
The word Illegal is used throughout the contract, with regard to parking. The operator has no role in upholding the Law and is therefore exceeding its authority and thus is not complying with the BPA CoP.
b. Penalty / Penalty Charge Notices
The word Penalty is used throughout the contract, with regard to parking. The charge is therefore confirmed as being a Penalty and the operator is unable to issue and / or pursue Penalty Charges.
c. Fines
As with Illegal and Penalty above, the word Fine is used throughout the contract. Again, the operator has no role in upholding the Law and is therefore exceeding its authority and thus not complying with the BPA CoP.
d. Grace Period
Clause 1.8 (Photographs) stipulates that a 15/30 minute grace period should be observed before a PCN is issued. The vehicle was observed by the operator between 10.35.52 and 10.54.42, period of a less than 19 minutes. It is impossible to guess what the 15/30 actually means, however it appears that the PCN was issued prematurely.
e. Notices, Signs and Sign Maintenance
Clause 1.5.4 a) of the contract requires the operator to include on all signs “…that the land is property of Brighton & Hove City Council…” The photograph of the sign submitted in the operator evidence does not show who the land owner is, let alone that the land is the property of Brighton & Hove City Council.
This also leads to point that the land is Not Relevant Land for the purposes of POFA 2012, which has been raised in some detail in the original appeal, and is further argued in following point, G) Council Letter
Clause 1.5 c) of the contract requires the operator to provide a landline. An 0844 number is a non-geographical telephone number.
G. Council Letter
The operator has provided a copy of a letter from Brighton & Hove City Council to the operator.
i. The letter is a request by the Council for the operator to commence parking enforcement at Ingram Crescent East and Ingram Crescent West. The operator has not provided a copy of the subsequent contract between the Council and the Operator. The operator has failed to prove that it is able to undertake any form of parking enforcement at the above address.
ii. The letter, rather than supporting the operators position, actually works against them. It confirms that the land is owned by Brighton & Hove City Council, which are a highway authority, and therefore the land is Not Relevant Land with regard to POFA 2012, in particular Pargraph 3(1) (b). The Not Relevant Land argument has been raised previously in my original appeal, however the operators new evidence has further highlighted this fact and it needs to be addressed.
Not Relevant land – POFA 2012 does not apply
“relevant land” has the meaning given by paragraph 3;

3(1) In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a) a highway maintainable at the public expense (within the meaning aof section 329(1) of the Highways Act 1980);
(b) a parking place which is provided or controlled by a traffic
authority;
(c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

The above and my original detailed submissions show how the applicable law (POFA 2012), the BPA Code of Practice and relevant case law (ParkingEye v Beavis) undoubtedly supports my appeal, which I submit should now be determined in my favour.
This concludes my appeal.

Coupon-mad

Great! You will have to email that to POPLA, as it won't fit in the restricted wording Portal. Put the POPLA code in the subject line and 'Comments on the evidence pack - please ensure the Assessor sees this email'.

I would just remove your final sentence:

This concludes my appeal.

Because POPLA Assessors ignore and take issue with anything they read as new evidence or an 'appeal' at comments stage. They will ignore it if they decide this is new appeal evidence.

You could put:

This concludes my comments and please note I have not added new evidence in the above, merely commented on the operator's evidence failures, in order to draw them to the Assessor's attention because it is clear the PCN was not properly given.

Iguana_En_Fuego

Thank you C-M. Will amend the closing statement as advised and e-mail as an PDF attachment.